The "Permina 108"

• Jurisdiction: Singapore
• Judgment Date: 25 August 1976
• Date: 25 August 1976
• Docket Number: Admiralty in Rem Nos 277 and 279 of 1976
• Court: High Court (Singapore)

The “Permina 108”

[1976] SGHC 10

Choor Singh J

Admiralty in Rem Nos 277 and 279 of 1976

High Court

Admiralty and Shipping–Admiralty jurisdiction and arrest–Owner's claim for charter hire under a time charterparty–Whether owners entitled to arrest vessels beneficially owned by time charterers at time when action is brought–Meaning of “charterer” in s 4 (4) High Court (Admiralty Jurisdiction) Act (Cap 6, 1970 Rev Ed)–Admiralty and Shipping–Admiralty jurisdiction and arrest–Two vessels arrested in respect of one claim–Whether arrest of second vessel should be set aside for lack ofin rem jurisdiction

The plaintiff, who was the owner of the vessel Ibnu, chartered her to the defendant by a time charterparty. The plaintiff issued two writs in rem against the vessels Permina108 and Permina Samudra XIV for the non-payment of several instalments of the charter hire under the charterparty. It alleged that the Permina 108 was owned by the defendant and the Permina Samudra XIV was owned by a wholly-owned subsidiary of the defendant at all material times. Both vessels were arrested, with the Permina 108 arrested first.

The defendant entered conditional appearance and filed notices of motion in both actions for orders that the writs of summons and all subsequent proceedings be set aside because the High Court did not havein rem jurisdiction over the vessels under s 4 (4) of the High Court (Admiralty Jurisdiction) Act (Cap 6, 1970 Rev Ed) (“the Act”). The grounds for the motions were, firstly, that the court did not have jurisdiction because the claims for non-payment of the charter hire was in respect of the Ibnu and had no connection with the vessels that were arrested and secondly, the plaintiff can only arrest one ship for its claim.

Held, dismissing the motion with respect to the Permina 108 and allowing the motion with respect to the Permina Samudra XIV:

(1) The position under s 4 (4) of the Act is that, to satisfy a claim for payments due under a charterparty, a claimant can arrest not only any ship in the ownership of a charterer by demise but also in the case of a time charter any ship in the ownership of the time charterer at the time when the action was brought. The defendant was liable to have its ships arrested for sums due under the Ibnucharterparty, even though it was a time charterparty: at [26].

(2) The purpose of s 4 (4) is amongst other things, to identify the person whose ship may be arrested, ie the person who would be liable on the claim in an actionin personam. The identification of the person is a question of fact to be decided on the particular circumstances of the case. There is no requirement under the Act that the ship to be arrested under clause (b) of the subsection should be in the same ownership as the ship to which the claim relates: at [30] and [31].

(3) Although a fresh cause of action arises each time there is a failure to pay an instalment of charter hire upon the due date, when a number of instalments are due, they merge and become one single debt. The plaintiff had only one maritime claim in respect of the non-payment of the charter hire and was not entitled to proceed in rem against both ships for the same claim. As the plaintiff first arrested the Permina 108, the subsequent arrest of the Permina Samudra XIV had to be set aside: at [37].

Banco, The; Monte Ulia v Banco [1971] P 137 (refd)

Davie v New Merton Board Mills Ltd [1959] AC 604 (refd)

Eschersheim, The [1976] 1 WLR 430 (distd)

Medway Drydock & Engineering Co Ltd v The Andrea Ursula (Owners) [1973] QB 265; [1971] 1 Lloyd's Rep 145 (refd)

Smith's Dock Co Ltd v Owners of the M V St Merriel [1963] P 247; [1963] 1 All ER 537 (refd)

St Elefterio Schwarz & Co (Grain) Ltd v St Elefterio, ex Arion (Owners) [1957] P 179; [1957] 2 All ER 374 (refd)

High Court (Admiralty Jurisdiction) Act (Cap 6, 1970 Rev Ed)s 4 (4) (consd)

Administration of Justice Act1956 (c 46) (UK)s 3 (4)

Michael David Thomas QC and T H A Potts (Rodyk & Davidson) for the plaintiff

Richard Stone QC, M Karthigesu and S Selvadurai (Selvadurai & Emmanuel) for the defendant.

Choor Singh J

1 These are applications by the defendants in two actions in rem to set aside the writs. Both applications were heard together as the two writs issued by the same plaintiffs are in respect of claims arising out of the same subject matter and were issued to arrest two ships owned by the same defendants. The facts are these. The plaintiffs as owners or chartered owners of the vessel Ibnu by a time charterparty dated 1 September 1970 chartered the vessel to P N Pertambagan Minyak dan Gas Bumi Negara (“the defendants”) for a period of ten years.

2 On 24 July 1976 the plaintiffs issued in the High Court two writs in rem, the first being Admiralty in Rem No 277 of 1976 against the owners of and other persons interested in the ship Permina 108, and the second being Admiralty in Rem No 279 of 1976 against the owners of and other persons interested in the ship Permina Samudra XIV.

3 The endorsement of claim in both writs is identical and is as follows:

The plaintiffs' claim against the defendants is for nonpayment of the charter hire due under a Charterparty dated 1 September 1970 in respect of the vessel 'Ibnu'.

4 In the affidavit filed in Admiralty in Rem No 277 of 1976 to support the application for a warrant of arrest to detain the ship Permina 108 it is alleged that the said ship was at all material times owned by the defendants and that there has been no change of ownership.

5 In the affidavit filed in Admiralty in Rem No 279 of 1976 to support the application for a warrant of arrest to detain the ship Permina Samudra XIV it is alleged that the said ship was at all material times owned by Warukin Corp which is alleged to be wholly owned by the defendants and that there has been no change of ownership.

6 In both said affidavits it is alleged that on 22 July 1976 there was “due and owing from the defendants to the plaintiffs the sum of US$7,230,711.48 by way of unpaid charter hire in respect of the said vessel Ibnu”.

7 Warrants of arrest were issued on 24 July 1976 in both actions.

8 In Admiralty in Rem No 277 of 1976 the warrant of arrest was executed and the ship Permina 108 detained on 24 July 1976 at 1.00pm.

9 In Admiralty in Rem No 279 of 1976 the warrant of arrest was executed and the ship Permina Samudra XIV detained on 24 July 1976 at 1.15pm.

10 It will be noted that thePermina 108 was arrested before the Permina Samudra XIV and this fact as shall be seen later is of considerable importance in these cases.

11 On 29 July 1976 the defendants entered conditional appearance in both actions and also filed notices of motion in both actions for an order “that the Writ of Summons and all subsequent proceedings be set aside for non-compliance with s 4 (4) of the High Court (Admiralty Jurisdiction) Act”. In each case in the affidavit filed in support of the motion to set aside the writ it is alleged that the affidavit leading to the warrant of arrest does not disclose a cause of action for the plaintiffs to arrest the defendants' ship as the affidavit did not satisfy the requirements of s 4 (4) of the High Court (Admiralty Jurisdiction) Act.

12 As stated earlier both applications to set aside the writs were heard together by me on 30 July 1976 but as the hearing could not be completed, it was adjourned to 13 August 1976. In between these dates the plaintiffs, on 11 August 1976 filed their statement of claim in both actions.

13 In the statement of claim filed in Admiralty in Rem No 277 of 1976 the plaintiffs have pleaded as follows:

In accordance with cl 10 and the other relevant provisions of the Charterparty hire and/or purchase payments became...